For businesses, SMS and email campaigns are one of the key sales tools. Legally, however, advertising messages over telecommunication networks are permitted only with the prior consent of the recipient; without such consent, a mailing becomes spam, with the risk of complaints, fines and reputational damage.

Let's look at how to attract customers without creating additional risks for your business.

What is meant by "advertising"?

Advertising is information addressed to an indefinite range of persons and distributed by any means, in any form and using any media, with the aim of drawing attention to the object being advertised (Article 3(1) of Federal Law No. 38 of 13.03.2006 "On Advertising" (the "Advertising Law")).

Important! Information is also considered advertising when it is sent to a specific list of recipients. If an email does not show that it is addressed personally to a specific person, it is general rather than individual in nature (paragraph 4 of Article 3 of FAS Order No. 821/23 of 14.11.2023).

Important! In practice, there are also cases where even a personal address to specific individuals (including by first name and patronymic) does not in itself affect whether the information conveyed to them is considered advertising (Decision of the Moscow FAS Office in case No. 077/05/18-6992/2020 of 21.07.2020; Resolution of the Twentieth Arbitrazh Court of Appeal No. 20AP-2043/23 of 04.05.2023 in case No. A62-7498/2022).

Examples of advertising include messages about discounts and promotions, invitations to webinars and events, and offers of new goods or services.

Conditions for lawfully sending advertising messages by SMS and email

The law proceeds from a general rule: advertising over telecommunication networks is permitted only with the prior consent of the subscriber or recipient (Article 18(1) of the Advertising Law; FAS Letter No. AK/52901/19 of 24.06.2019). This applies to SMS, calls, emails and other communication channels through which advertising material is sent.

Accordingly, a mailing sent without such consent is spam.

The recipient's consent to receive advertising is therefore a mandatory condition. Consent may be expressed in any form, provided it:

makes it possible to identify the person to whose email address or phone the advertising message was sent;
confirms their wish to receive advertising from a specific advertising distributor (paragraph 15 of Resolution No. 58 of the Plenum of the Supreme Arbitrazh Court of 08.10.2012).

Important! Businesses often see such consent as a formality, but legally it is what makes sending advertising messages permissible. Sending advertising to an email address without the recipient's consent is unlawful.

Liability for sending spam

The main risk for business is administrative liability for violating advertising legislation.

Sending advertising to persons from whom prior consent has not been obtained (spamming) is punishable by an administrative fine (Article 14.3(4.1) of the Code of Administrative Offences) (Resolution of the FAS Office for the Sverdlovsk Region No. 066/04/14.3-1839/2025 of 28.07.2025; Resolution of the Office of 10.04.2025 in case No. 077/04/14.3-3997/2025).

For individuals: RUB 10,000 – 20,000;
For officials: RUB 20,000 – 100,000;
For legal entities: RUB 300,000 – 1,000,000.

In addition, the violator may face civil liability at the request of the person who received the spam, in the form of compensation for losses, compensation for harm caused to the health of individuals and/or the property of individuals or legal entities, and compensation for moral damage (Article 38(1) of the Advertising Law).

Recommendations from the C Cases team

Obtain separate consent to advertising mailings:
Specify exactly which communication channels will be used for advertising mailings;
State the period of validity of the consent;
State how consent can be withdrawn.

Obtain separate consent to the processing of personal data for the purpose of receiving advertising mailings (or state this purpose separately in the general consent to the processing of personal data).

An email address or phone number may be considered personal data where such information relates to a directly or indirectly identified or identifiable individual (Letter of the Ministry of Communications No. P11-15054-OG of 07.07.2017; Decision of the Arbitrazh Court of the Voronezh Region of 29.05.2023 in case No. A14-22861/2022).

Record and keep evidence of the consents obtained.

Conclusion

Advertising SMS and email campaigns remain an effective tool for promoting goods and services, but they are closely watched by the supervisory authorities and can often irritate potential customers. Compliance with personal data and advertising legislation is no longer a formality but a necessary condition that will help entrepreneurs avoid financial losses and litigation.

Properly separating consents to the processing of personal data and to receiving advertising, documenting them correctly, and complying with the statutory requirements for the content and sending of informational and advertising messages are prerequisites for the lawful use of advertising mailings as a promotional tool.

If you need to set up or check your advertising mailing system for compliance with advertising and personal data legislation, the C Cases team is ready to help with a legal audit of your current practice, preparing and updating consents and internal regulations, and supporting your dealings with the supervisory authorities.

Sources

• Federal Law No. 38 of 13.03.2006 "On Advertising";
• Code of Administrative Offences of the Russian Federation No. 195-FZ of 30.12.2001;
• Resolution No. 58 of the Plenum of the Supreme Arbitrazh Court of 08.10.2012;
• FAS Letter No. AK/52901/19 of 24.06.2019;
• Resolution of the FAS Office for the Sverdlovsk Region No. 066/04/14.3-1839/2025 of 28.07.2025;
• Resolution of the Office of 10.04.2025 in case No. 077/04/14.3-3997/2025;
• Letter of the Ministry of Communications No. P11-15054-OG of 07.07.2017;
• Decision of the Arbitrazh Court of the Voronezh Region of 29.05.2023 in case No. A14-22861/2022.